What does Cameron actually want?

Roger Liddle
-
05 November 2015

Until now, the prime minister has kept his
cards close to his chest on Britain’s EU renegotiation. What is his most
desired outcome?

The
frustration with Cameron in Brussels and national capitals is not
because of a point blank refusal to contemplate the idea of
renegotiation. Rather it has been the British government’s opaqueness in
spelling out what its precise renegotiation objectives are. For two and
a half years after his Bloomberg speech in January 2013, Cameron played
his renegotiation cards close to his chest. There were three
significant developments on what he had said then.

• His
article for the Telegraph in March 2014 offered some “detail of the
specific changes” he would seek in Britain’s relationship with the EU,
which for the first time raised the demand for a British opt-out from
‘ever-closer’ union and questioned Britain’s continued commitment to the
European convention on human rights.
• His party conference
speech in October 2014 dramatically shifted the emphasis of his European
agenda to curbs on EU migration, which had been totally absent in his
Bloomberg speech.
• His immigration speech later that year set
out specific demands for changes in EU migration rules including a
four-year waiting period for eligibility for in-work benefits.

The
Conservative election manifesto added nothing to what had already been
said, except to reaffirm the commitment Cameron had made the previous
autumn that he would not lead a government unless it was firmly
committed to an in-out referendum on EU membership.

Since the
Conservatives’ victory in May, little new of substance has been
disclosed about the government’s renegotiation objectives. The only
policy shift has been tangential: the government has backpedalled on the
pledge to withdraw from the European convention on human rights. The
Queen’s speech pledged further consultation, not legislation. This is in
part because of the inherent complexity in drawing up a British bill of
rights, not least the opposition of all three of the devolved
administrations within the UK. This may also be a tactical retreat on
the government’s part in order to keep this policy ‘in reserve’ as a
potential sweetener to Eurosceptic opinion, should the EU renegotiation
not fully meet their expectations.

But for all the lack of
detail, there has been a big change in the Conservative government’s
mood and approach since May 2015. The renegotiation and referendum
policy is now for real and the government’s approach has ceased to be
casual and dilatory. The government clearly wants to press ahead
speedily with the process of renegotiation. It has done nothing to
squash speculation of a referendum in 2016, possibly as early as June.
It has signalled a clear intent that it is aiming for an outcome which
will enable Cameron to recommend a vote for Britain to stay in the EU.

Cameron
has also launched a charm offensive with our partners. Before the June
European council, David Cameron met or spoke to every single one of his
opposite numbers individually. He invited the Commission president, Jean
Claude Juncker, to spend the weekend in Chequers. He has met the
president of the parliament, Martin Schulz, and the leaders of the
mainstream political groups. By all accounts this exercise has paid
dividends in terms of establishing a more positive and committed tone to
relationships than had been in evidence before the 2015 election.
Cameron is planning more bilateral contacts, as are other senior
ministers including the foreign secretary and chancellor, who is
exercising a strong grip on the negotiations.

There has been
repeated speculation about whether or not the government’s renegotiation
agenda requires treaty change. Cameron insists that it does, but with
little clarity about what he means in practice by this statement. The
government does not expect treaty change to be ratified in all member
states before a British referendum. However the government is exploring
some legally binding form of pre-commitment to treaty change. There are
precedents in the Danish protocol of 1992 and the Irish protocol of
2008. Both instruments contained legally binding assurances sufficient
to persuade the Danish and Irish electorates to approve treaty changes
they had previously rejected in national referendums. However, these
legally binding guarantees were largely specific to the member state
concerned – though the Irish won a commitment that every member state
would continue to have its own commissioner, kyboshing earlier plans to
reduce the size of the commission. Nonetheless, it is difficult to
envisage how a legally binding protocol could embrace a significantly
wider agenda of treaty changes. For this would amount to a
pre-negotiation before they had gone through the proper procedures laid
down in the present treaties for a convention and intergovernmental
conference. The EU is a legally ingenious entity but it would be
difficult for our partners and the European parliament to go along with
such an approach.

One possibility is that the European
council might agree to issue a declaration setting out an agreed
direction of change. There have been many such declarations before, for
example the Laeken declaration of 2001 that set the agenda for the
constitutional convention and subsequent treaty negotiations. The
British stance has been relatively relaxed about such declarations in
the past, precisely because they were not seen as having the same
binding legal effect as treaty change: rather in cases before the
European court of justice, they would be treated as strong guidance,
rather as the British courts sometimes refer to ministerial second
reading speeches when they look at the intentions behind legislation.

What
might it then be possible for Cameron to negotiate? One can envisage
that an eventual package might emerge consisting of three elements:

• First, a protocol that contains legally binding opt-outs and guarantees specific to the UK.
• Second, a declaration of some (but lesser) legal effect about the future direction of treaty change in the EU.
•
Third, when it comes to specific changes in EU legislation, regulation
and policy, a formal white paper tabled by the European commission
could be endorsed by both the European council and European parliament.The contents of such a paper could be quite detailed, including draft
amendments to EU legislation. However this would have a status no
different to a UK white paper. It could not pre-empt the detailed
legislative process. The commission would make clear that this was not a
precedent for restricting their future right of legislative initiative
under the treaties; the council of ministers would still be obligated to
agree the precise terms of any legislative change in detail; and the
parliament could not compromise on its right to co-decide new EU
legislation.

Democratic purists object to the government’s
reticence in setting out its renegotiation agenda in more detail. For
one thing it makes it difficult for the UK parliament to hold the
government to account for its conduct of its EU renegotiation, which for
all the politics is a question of vital national interest. Yet the
government’s reserve is understandable from a tactical perspective. The
publication of a detailed set of renegotiation objectives would be a
hostage to fortune. Our EU partners would immediately be pressed to say
whether they agreed or disagreed with each item on the list, which could
have the effect of hardening their position in later discussions.
Similarly British Eurosceptics would be emboldened to insist on a
toughening up of the government’s list of demands. The government
appears to be operating on the maxim: ‘we may never disclose precisely
what we were asking for until we know what we’ve got’.

Certainly
no discussion of substance took place at the June European council.
The British question occupied a mere ten minutes of the council’s time;
there were far more pressing pre-occupations, on that occasion the
Mediterranean migration and asylum crisis, with the unresolved questions
of Greece hanging threateningly in the background. This must have come
as a timely reminder to Cameron of how the British question could easily
become viewed as a time-wasting distraction by other leaders.

The June 2015 European council conclusions merely note: "The
UK prime minister set out is plans for an in-out referendum in the UK.
The European council agreed to revert to the matter in December."

At
the European council meeting on 15-16 October, the European council
president, Donald Tusk, is expected to present a brief
‘work-in-progress’ report on technical discussions that are now taking
place at official level in Brussels between British, council and
commission officials. The key players on the British side in these
discussions are Ivan Rogers, the permanent representative in Brussels
and Tom Scholar, the head of the European and overseas secretariat in
the Cabinet Office, with Cameron’s former chief of staff, Ed Llewellyn,
in the background. The Foreign Office in the UK will obviously play a
supporting role, with the minister of Europe, David Lidington, an
energetic pro-European networker across the continent.

The
commission interlocutors will include Martin Selmayr, President
Juncker’s chef de cabinet, and a German Christian Democrat; Jonathan
Faull, a long standing British official in the European commission,
formerly director general in the commission in charge of financial
services, who has been put in charge of a special unit to handle the
commission’s role in the British renegotiation; and possibly first
vice-president Frans Timmermans. For the council, key roles will be
played by the new Danish secretary general, Jeppe Tranholm-Mikkelsen and
the chef de cabinet of President Tusk, Piotr Serafin. The commission
and council legal services will also be crucially involved in drafting
and vetting texts and determining what change is possible within the
existing treaties.

Depending on the outcome of these initial
discussions, a detailed paper may or may not be prepared by the
presidency of the European council and its secretariat for its 17-18
December meeting. If this paper sets out, as it may, potential areas of
agreement, and alternatives where there is not, the government’s ‘asks’
will then become unavoidably much clearer. At that stage the prime
minister would face a difficult – but for the moment inevitably
unresolved – handling question. Is it better for the prime minister to
settle for what he can achieve in private before December and announce a
‘done deal’ then, perhaps after some stage-managed late-night haggling
at the European council? Or is more to be gained politically by a public
row and breakdown in December that fully exposes Britain’s ‘must-haves”
– but runs the risk that it might harden attitudes all round.
Eurosceptic pressure from the Conservative backbenches might become
unbearable. At the same time anger may grow among our partners who think
too much has already been conceded to Britain.

Were there to
be a high-stakes clash at the December council with a failure to agree,
the government might hope to set itself up for a public relations
triumph at a further European council meeting in February or March 2016.
However, Cameron would run the risk that the desired “game, set and
match” for Britain (as John Major famously claimed at the conclusion of
the Maastricht negotiations in December 1991) could easily turn into a
protracted period of long and agonising ‘tie-breaks’. These could easily
end in some visible defeat or humiliation, particularly if one believes
that the government has ultimately no real alternative or intention but
to accept the best deal it can obtain and then sell the result to the
British people.

Success also depends, as Herman Van Rompuy
warned in a speech to a ‘New Pact for Europe’ conference in Brussels in
October, on the ability of those in charge of the negotiations,
principally Tusk, his successor, to prevent other member states bringing
issues of specific concern to themselves to the table as a condition of
their agreement to the British package. This may, for example, become
an issue if there is a change of government in Tusk’s native Poland this
autumn where the opposition Law and Justice party has a strong
Eurosceptic agenda of its own; Poland will be a key to any agreement on
change in treaties, legislation or policy on free movement of labour.
But it could also apply to Austria, Greece, and Spain – indeed any
single member state.

In his report back to the Commons on
the June European council meeting David Cameron claimed the government
“have a clear plan of reform, renegotiation and referendum”.

At the
council he had set out the case for substantive reform in four areas –
sovereignty, fairness, immigration and competitiveness:

"First
on sovereignty, Britain will not support being part of an ever-closer
union or being dragged into a state called Europe – that may be for
others, but it will never be for Britain, and it is time to recognise
that specifically. We want national parliaments to be able to work
together to have more power, not less.

"Secondly on fairness, as
the eurozone integrates further, the EU has to be flexible enough to
make sure that the interests of those inside and outside the eurozone
are fairly balanced. Put simply, the single currency is not for all, but
the single market and the European Union as a whole must work for all.

"Thirdly,
on immigration, we need to tackle the welfare incentives that attract
so many people from across the EU to seek work in Britain.

"Fourthly, alongside all those, we need to make the EU a source of jobs, growth, innovation and success, rather than stagnation."

Among
EU experts there are widely diverging views on what all this means and
its ease of negotiability. There are those who claim they could draft
overnight an outcome that could be presented as acceptable to all, which
would enable the prime minister to walk away from the December council
with a substantive looking agreement that he could wave to journalists
(most of whom have little grip on the detail) as ‘peace in our time’. On
the other hand there are those who argue that if the government is
serious about real change then all of the points Britain is pressing
will cause severe difficulties for at least some of our partners.

Osborne
and the Treasury may be aiming to achieve substantive and difficult
objectives on the question of fairness between those inside the eurozone
and those outside it – the ‘euro-ins’ and ‘euro-outs’. These will not
be easy to negotiate with our partners, particularly as they raise
politically sensitive questions about the City of London. Moreover they
involve assumptions about the consequences for the ‘euro-outs’,
including the UK, of future integration in the eurozone on the nature of
which there is at present no consensus between euro members. Similarly,
detailed reforms to freedom of movement rules and migrant benefits are a
legal and political minefield, given the potential for conflict with
fundamental treaty rights and sharply divided interests within the
European council.

Of course the fundamental point is not the
seriousness of the issues on the agenda, but what is regarded as an
acceptable outcome. Cameron himself sometimes leaves the impression that
the details are of secondary importance to the result – and in big
picture terms, he is of course right. By contrast, many British
Eurosceptics behave as though they think that if only Britain bangs the
table hard enough, whatever is asked for is attainable. It is often
forgotten in the British discussion that any European council agreement
requires the assent of all member states – not just France and Germany,
though that obviously helps. The EU is far from being a federal state –
countries as small as Cyprus, Latvia and Malta have a technical veto
over any deal. Eurosceptics sometimes forget that that is how they want
the European Union to be!

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The Policy Network Observatory promotes critical debate and reflection on progressive politics. It is centre-left orientated but determinedly challenges social democracy. It is pro-European but restlessly questions EU institutions and practices.